Author Archive
Calvo Raid Justified?
The police have now reviewed and justified the violent break-in of Berwyn Heights, Md., mayor Cheye Calvo’s home a few weeks back. The police kicked in his front door without announcing themselves, and shot his two pet dogs dead. The police later cleared Calvo of any wrongdoing but insisted that their raid tactics were appropriate. A separate FBI investigation is under way.
We’re hosting a forum on no-knock raids here next week. Mayor Calvo will be here to tell his story and we’ll also hear from Radley Balko, author of the Cato study Overkill, and Peter Christ, co-founder of Law Enforcement Against Prohibition. Details here.
Speedy Trial?
Joseph Shepard sat in local jails for almost two years on drug related charges. According to the St. Louis Post-Dispatch, he’s a man the system forgot–ignored by prosecutors, judges, and his own attorney. (Via How Appealing).
In North Carolina, the Courts have ruled that the busier the state gets, the more we need to forget about the constitutional rule requiring speedy trials. And the drug war makes the courthouse a very busy place indeed.
Militarized Policing
Glenn Greenwald has a good roundup of militarized police actions in St Paul.
Radley Balko looks at police actions in Denver.
For related Cato work on this disturbing trend, go here and here. We’ll be hosting a forum on no-knock police raids here at Cato next week.
Justice Dept Backs Up After KPMG Ruling
The New York Times reports that the Justice Dept. is rolling back its bullying tactic of penalizing companies that reimburse their employees’ legal fees during investigations and trials. This move is mostly show–to make the feds seem reasonable and open to suggestions. But it is really just a reaction to the department’s defeat in today’s KPMG case (pdf) and a lame attempt to stave off legislation that would be more meaningful and permanent.
Attorney Richard Janis details these issues in this new Cato report.
DC Government Finally Issues Heller’s Handgun Permit
Here’s the story from today’s Washington Post.
Keep an eye out for Brian Doherty’s forthcoming book about this landmark case!
Juror Becomes Fly in the Ointment
It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.
But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”
That’s a fair question. It is a point that has been made in Cato’s publications ( go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas [pdf], among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.
It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.
1. Court precedents say jurors have no right to nullify. Well, yes, that is undeniable. But that’s like someone saying in 1950 that court precedents tell us that ”separate, but equal” is the law of the land–go read Plessy v. Ferguson. The real question is whether those court rulings are truly consistent with the Constitution. I would also point out that even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock (not an untoward outcome, by the way). Judges do remove jurors from time to time, but there is no punishment. At least not yet.
2. Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’” and he attributes that proposition to our second president, John Adams, who also authored the Massachusetts Constitution. The quote is accurate, but Young is mixing up legal principles and does not know Adams well enough. Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification. Here’s Adams: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” C.F. Adams, “The Works of John Adams,” 253-255 (1856)(emphasis added).
3. Jury nullification undermines the rule of law. This is simply another variation of objection #2 above. There is a logical fallacy to this objection. Jury nullification is assumed to be improper–so it undermines “the law.” It is like saying a presidential pardon undermines the “rule of law.” But if the president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases). This is the way in which to understand jury nullification. The framers of the American Constitution considered it to be part and parcel of what a criminal jury trial was all about. Some state constitutions, such as Indiana, Maryland and Oregon, explicitly provide that juries have the power to judge the law and the facts in criminal cases. Judges are the ones that have undermined the “rule of law” by pretending those provisions mean the opposite of what they say.
Judge Young expressed alarm about the recent Time magazine article by David Simon and his The Wire colleagues that calls for jury nullification in drug cases. But that article has revived a debate that we should all welcome. For much more on this subject, go here, here, here, and here.
Colbert Nails the Drug Warriors
Stephen Colbert on the Gary Ross case.
Thanks Colbert. Interestingly, bad-ass Michael Levine spoke at my Drug War conference several years back. Levine acknowledges that we waste billions on drug interdiction and other follies, but he can’t bring himself to join other cops that are for calling off this war. For additional Cato research, go here.
Criminal Law Perverted
Federal prosecutors are patting themselves on the back for branding Charles Lynch (no relation) as a criminal that must be locked up for five years. Charles Lynch ran a medical marijuana dispensary in California. Reason’s Nick Gillespie has the outrageous details here.
Milton Friedman on Drug Prohibition
Since it’s Milton Friedman’s birthday today, take a moment to watch this brief video clip. It is an interview conducted by our friends at the Marijuana Policy Project shortly before Dr. Friedman passed away.
For related Cato work on the disastrous drug war, go here.
Steve Chapman on Consent Searches
Steve Chapman takes a look at the problem of ‘voluntary’ roadside searches. Excerpt:
If I approach as you pull into a parking space and ask if you’d mind my rummaging through your car, the chances are at least 90 percent that you’d decline. But if a police officer stops you with the same request, the chances are higher than 90 percent that you’d agree. Something about that badge makes citizens eager to be helpful.
Or maybe not. In civics class and 4th of July speeches, we are told that American democracy rests on the consent of the governed. But interactions with the police serve as a useful reminder that government rests less on voluntary cooperation than on fear and force. A nation is free to the extent it prevents the rulers from bullying and coercing the ruled. By that standard, American society still has a way to go.
Read the whole thing.
Learn what your rights are. Get the Busted dvd. Related Cato work, here.
The FBI Turns 100
This weekend the FBI will celebrate its 100th anniversary. As you might expect, the Bureau is trumpeting its record, i.e., the FBI has protected America from gangsters, Nazis, Communists, mobsters, terrorists, and so forth. The image has always been super-competent, super-honest agents who hunt down the evil-doers.
But what about the actual record of the FBI? Sen. Charles Grassley (R-Iowa) has long taken a skeptical view of the FBI and I think his remarks from a 1997 oversight hearing are on the mark:
[M]y father’s occupation was farming in Iowa. And in the ’40s and ’50s, when I was growing up, he taught me to respect the FBI. I came to Washington with a great deal of respect for the FBI. I know that my criticism of senior management, in the last year probably, doesn’t show that I was brought up that way. But it’s not easy for me to think of my father’s respect for the FBI, that they could do no wrong, and find some of the things wrong because, in decades of public service, I have never known an agency that right now is in need of more oversight, including congressional oversight, than the FBI. And that’s after a year of digging into issues that the Bureau has been involved with.
We all respect the good things that the FBI does. We know that there are thousands of agents out there in the field that are putting their lives on the line. And most Americans have the image of the FBI as very good, beyond reproach, the untouchables. The FBI has cultivated that image…. But serious problems with the Crime Lab punctured that image, also Ruby Ridge and Waco have. Beyond the veneer is an ugly culture of arrogance that uses disinformation, intimidation, empire building, to get what it wants.
And I’ve got some documentation, if you’re interested in my feeling about intimidation and disinformation. It resists oversight by an independent body. It resists cooperation and information-sharing with state and local law enforcement. Now I want to show some examples of these. I find that the FBI sometimes uses intimidation tactics when it wants to get its own way. When I have made inquiries, sometimes they simply refuse to respond. That’s not what legitimate oversight is about. It suggests that there’s something to hide. And that’s why problems like the FBI Crime Lab are allowed to exist and fester so long without detection — in that case, maybe about eight years.
While Congress has given the FBI more money than can be spent wisely — for instance, we tripled the amount of money, in just five years, for combatting terrorism. It reminds me of how Congress mindlessly pumped up the defense budget during the ’80s, and all that we did was increase the price of what we bought — hammers, pliers and toilet seats. In this case, I think that we need to carefully examine every nook and cranny of the FBI’s budget to make sure we’re getting what was advertised. And I intend to be a part of that effort in the coming months, because what I have found is that senior management within the FBI puts too much focus on its image and budget and not enough on product, and that product should be law enforcement and public safety.
Like Senator Grassley says, we should acknowledge FBI successes. But a proper appraisal of the Bureau’s actual record must take into account both the good and the bad. Two days ago, Cato hosted an event about the FBI’s record. The panel included the FBI’s official historian, Dr. John Fox, and an outside academic expert, Dr. Athan Theoharis. To view the event, go here.
Here are 10 people/events that the FBI would rather not discuss.
Supreme Court Rules, But Behold the Rigmarole
Dick Heller won in the Supreme Court, but the D.C. government is creating a rigmarole of a process for residents to exercise their constitutional right. Looks like everyone one is going to need a lawyer to guide them through the morass—at least in the near term.
Washington Post columnist Marc Fisher says that DC officials held a press conference where they seemed to be amused by the cumbersome registration process they have created: “There are circumstances where it could take months,” Police Chief Cathy Lanier conceded, and you could almost hear the elected officials around her emitting “heh-hehs” of mischievous delight. Read the whole thing.
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